Brown v. State

• Decision Date: 14 June 1979
• Docket Number: No. 53782,53782
• Citation: 376 So.2d 382
• Parties: Edward J. BROWN, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 382

376 So.2d 382

Edward J. BROWN, Petitioner, v. STATE of Florida, Respondent.

No. 53782.

Supreme Court of Florida.

June 14, 1979.

Rehearing Denied Nov. 27, 1979.

Tobias Simon and Theodore L. Tripp, Jr., Miami, for petitioner.

Jim Smith, Atty. Gen., and Calvin F. Fox, Asst. Atty. Gen., Miami, for respondent.

SUNDBERG, Justice.

By petition for writ of certiorari, petitioner seeks review of the decision of the District Court of Appeal, Third District, reported at 355 So.2d 138, which is alleged to be in conflict with Fullard v. State, 352 So.2d 1271 (Fla. 1st DCA 1977). The issue presented is whether a criminal defendant, in order to plead Nolo contendere and specifically reserve his right to appeal, must show that the legal issue reserved for appeal is dispositive of the case. We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

Petitioner was charged by information with unlawful possession of marijuana. He pleaded not guilty and filed a pretrial motion to suppress his confession. Petitioner did not, however, file a motion to suppress the marijuana. Upon stipulation of the parties the trial court considered a series of pretrial discovery depositions taken by the defense as the sole testimony on the motion to suppress. The record does not indicate whether this deposition testimony represented the full extent of the State's case against petitioner.

The testimony revealed that the police seized marijuana from petitioner's motel room while he was absent. Upon his return to the room and after an unsuccessful attempt to flee, petitioner was arrested and given his Miranda warnings. The police also arrested the person who was in the motel room at the time of the seizure of the contraband. At the police station a Sergeant Minium questioned petitioner but did not readvise him of his Miranda rights. During this interrogation petitioner admitted ownership of the marijuana.

After the trial court denied his motion to suppress the confession, petitioner changed his plea of not guilty to a plea of Nolo contendere upon condition that he be allowed to appeal the denial of the motion to suppress. The trial court accepted his plea as so conditioned and placed him on two-year's probation. The District Court of Appeal, Third District, dismissed petitioner's appeal, reasoning that under State v. Ashby, 245 So.2d 225 (Fla.1971), a conditional Nolo plea is permissible only if the legal issue to be appealed is dispositive of the case. In Fullard, supra, the District Court of Appeal, First District, reached a contrary result, holding that an Ashby nolo plea need not be conditioned upon a dispositive legal issue.

Petitioner asserts that the limitation placed upon an Ashby nolo plea by the decision here under review is contrary to the intent of Ashby, supra, and the decisions of other district courts. Respondent counters by arguing that the policies underlying the Ashby rule are in fact subverted by permitting a Nolo plea conditioned upon the right to appeal nondispositive issues. For the following reasons, we agree with respondent's contentions and hold that an Ashby nolo plea is permissible only when the legal issue to be determined on appeal is dispositive of the case. To the extent Fullard v. State, supra, holds to the contrary it is disapproved.

The practice of allowing an appeal after a plea of Nolo contendere is grounded upon the belief that "it expedites resolution of the controversy and narrows the issues to be resolved." ¹ These purposes are poorly served and, indeed, thwarted when a defendant is permitted to appeal nondispositive pretrial rulings. Instead of expediting resolution of the controversy, the procedure prolongs litigation by sanctioning, in effect, an interlocutory appeal. Because of the nondispositive nature of the appeal, the defendant faces the prospect of a trial even if he prevails on appeal. The inevitable is not avoided but merely postponed, thus further burdening the already severely taxed resources of our courts.

The more logical and efficient procedure to follow in this situation is to proceed to trial and fully ventilate all of the issues. In this way the matter will reach the appellate court in a familiar posture and with a full record upon which to base an intelligent decision. ²

The vast majority of federal courts are in accord with the decision we reach today. United States v. Sepe, 486 F.2d 1044 (5th Cir. 1973); United States v. Matthews, 472 F.2d 1173 (4th Cir. 1973); United States v. Soltow, 444 F.2d 59 (10th Cir. 1971); United States v. Karger, 439 F.2d 1108 (1st Cir.), Cert. denied 403 U.S. 919, 91 S.Ct. 2230, 29 L.Ed.2d 696 (1971); Abram v. United States, 398 F.2d 350 (3d Cir. 1968); United States v. Moretti, 353 F.2d 672 (2d Cir. 1965), Vacated and remanded on other grounds, 387 U.S. 425, 87 S.Ct. 1709, 18 L.Ed.2d 864 (1967). In United States v. Cox, 464 F.2d 937 (6th Cir. 1972), the defendants pleaded guilty to the charge of possession of stolen property after the district court denied their motion to suppress. ³ The pleas were expressly conditioned upon the defendants' right to appeal the denial of the motion to suppress. The court refused to countenance this procedure on the following grounds:

Quite apart from the questions of legal consistency discussed above, we are also troubled by certain legal assumptions which have been made by the parties to this procedure. They appear to assume that a reviewing court can properly look at one legal issue, even one of constitutional dimensions, in isolation from the other facets of a case. This, of course, was a characteristic of the genius of the early common law but is not true of our modern system of jurisprudence. Under classical common law notions, the trial court always presented a single, finite issue, either factual or legal, to the reviewing court; that single issue, many times of artificial significance because of the peculiarities of common law pleading, would be dispositive of the entire case.

In what is a throwback to common law practices, resembling in some ways the situation created by a demurrer, we are presented in the case at bar with a naked question of law which could very well be of artificial and inflated importance. Since there was no trial, the only record before us is the hearing on the motion to suppress. We are left to conjecture whether the prosecution had additional evidence to present against the defendants. There is at least an inference that can be drawn from the limited record before us that since the arresting officers received a description of the defendants and their automobile over the police radio, there were some eyewitnesses to the crime itself. We are left to speculate that perhaps the prosecutor had sufficient additional evidence that he would not have introduced the evidence seized during the search of defendants' automobile and which the district judge ruled could be admitted into evidence. A ruling on the right to introduce evidence is, after all, not the same thing as actually introducing the evidence itself.

464 F.2d at 944-945.

We must now ascertain what constitutes a dispositive legal issue. In most cases the determination will be a simple one. Motions testing the sufficiency of the charging document, the constitutionality of a controlling statute, or the suppression of contraband for which a defendant is charged with possession are illustrative. ⁴ This case, however, presents us with one of the truly inscrutable areas confessions. In order to determine accurately...